BILL ANALYSIS
SB 928
SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
Senator S. Joseph Simitian, Chairman
2009-2010 Regular Session
BILL NO: SB 928
AUTHOR: Simitian
AMENDED: March 25, 2010
FISCAL: No HEARING
DATE:April 5, 2010
URGENCY: No CONSULTANT:
Rachel Machi Wagoner
SUBJECT : CONSUMER PRODUCTS: CONTENT INFORMATION
SUMMARY :
Existing federal law :
1) Pursuant to the Consumer Product Safety Act, provides
protection of the public against unreasonable risks of
injury associated with consumer products, largely by
developing uniform safety standards for those products.
2) Pursuant to the Toxic Substances Control Act, states that
adequate data should be developed with respect to the
effect of chemical substances and mixtures on health and
the environment and that the development of such data
should be the responsibility of those who manufacture and
those who process such chemical substances and mixtures.
Existing California law :
1) Requires the manufacturer of a cosmetic product to disclose
to the Department of Public Health a list of any ingredient
in their product that is a chemical which has been
identified to cause cancer or reproductive damage, pursuant
to the California Safe Cosmetics Act of 2005.
2) Requires the Department of Toxic Substances Control (DTSC)
to adopt regulations to: 1) establish a process to identify
and prioritize chemicals or chemical ingredients in
products that may be considered a "chemical of concern;" 2)
establish a process for evaluating chemicals of concern in
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products, and their potential alternatives in order to
determine how best to limit exposure or to reduce the level
of hazard posed by a chemical of concern, as specified; and
establish a process that includes an evaluation of the
availability of potential alternatives and potential
hazards posed by alternatives, as well as an evaluation of
critical exposure pathways.
3) Requires DTSC to establish a Toxics Information
Clearinghouse for the collection, maintenance, and
distribution of specific chemical hazard traits and
environmental and toxicological end-point data. The bill
also requires the Office of Environmental Health Hazard
Assessment to evaluate and specify the hazard traits and
environmental and toxicological end-points and any other
relevant data that are to be included in the clearinghouse.
This bill :
1) Makes legislative findings regarding the federal Consumer
Product Safety Act and the authority of states to impose
stricter requirements if the state standard provides a
higher degree of protection than the federal standard.
2) Defines various terms, including "designated consumer
product."
3) Requires a manufacturer or wholesaler of a designated
consumer product to provide notice of all substances that
are contained in their product.
4) Provides that notice is fulfilled by the posting of
required information on a manufacturer's or wholesaler's
web site; manufacturers or wholesalers must establish a web
site for compliance with this bill.
COMMENTS :
1) Purpose of Bill . According to the author, there are
currently more than 80,000 chemicals approved under federal
law for use in the United States. Each day, a total of 42
billion pounds of chemical substances are produced or
imported in the U.S. for commerical and industrial uses.
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An additional 1,000 new chemicals are introduced into
commerce each year. Approximately one new chemical comes
to market every 2.6 seconds and global chemical production
is projected to double every 25 years. The average U.S.
consumer today comes into contact with 100 chemicals per
day. In 2009, the U.S. Centers for Disease Control
conducted the Fourth National Report on Human Exposure to
Environmental Chemicals which measured 212 chemicals in the
blood and urine of a representative population of
California. California consumers and businesses are
becoming increasingly aware and concerned about the
abundance of chemicals that they are exposed to in the
products that they use on a day-to-day basis in their homes
and in the workplace. However, they lack the ability to
make informed decisions about the chemicals in the products
that they purchase because product manufacturers are not
required to disclose the chemicals in the products.
Additionally the author notes that there is a vast gap in
data concerning how Californians are being exposed to these
chemicals, at what level and frequency they are being
exposed and what the impacts are of the individual or
synergistic, long or short term, low or high concentration
exposures because there is a lack of chemical ingredient
disclosure on consumer products. Given the magnitude of
chemical production, use and exposure, it is crucial to
construct a better understanding of these exposures.
According to the author, SB 928 would empower California
consumers and businesses to access basic information about
the ingredients in their products and make informed
decisions about the type of products that they purchase and
use, and would help construct a clearer picture of where
chemicals are used in consumer products and how that
impacts exposures.
2) The Toxic Substances Control Act (TSCA) . The federal Toxic
Substances Control Act of 1976 (TSCA) authorizes USEPA to
require reporting, record-keeping and testing requirements,
and set restrictions relating to chemical substances and/or
mixtures. Certain substances are generally excluded from
TSCA, including, among others, food, drugs, cosmetics and
pesticides. TSCA addresses the production, importation,
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use, and disposal of specific chemicals. Among its
provisions, TSCA requires USEPA to maintain the TSCA
inventory which currently contains more than 83,000
chemicals. As new chemicals are commercially manufactured
or imported, they are placed on the list.
TSCA requires the submission of health and safety studies
which are known or available to those who manufacture,
process, or distribute in commerce specified chemicals; and
allows USEPA to gather information from manufacturers and
processors about production/import volumes, chemical uses
and methods of disposal, and the extent to which people and
the environment are exposed.
Data Gaps in TSCA - Within TSCA there are several areas
where there are vast gaps in data available about chemicals
currently in use in the United States. For example:
TSCA places the responsibility for
conducting health and environmental impact testing
on USEPA, not the producer of the chemical substance
or mixture. To date, USEPA has conducted testing
and published data on 200 chemicals on the inventory
of 83,000 chemicals.
TSCA does not provide for the review of
synergistic health and environmental impacts of the
potential interactions of the thousands of chemicals
and the potential mulitude of exposures and exposure
pathways.
There were 62,000 chemicals in use in 1976
when TSCA was adopted into federal law. TSCA
provides for a grandfather clause for those 62,000
chemicals.
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TSCA provides chemical producers protections
for confidential business information (CBI),
allowing producers to not publicly disclose
information about new chemicals entering commerce.
To date, the USEPA has reported that nearly
two-thirds of the new chemicals reported under TSCA
over the last 33 years have claimed CBI protection.
Current Actions under TSCA - On September 29, 2009, USEPA
Administrator Lisa Jackson announced enhancements to the
agency's current chemicals management program under TSCA in
an effort to identify chemicals that pose a concern to the
public, move quickly to evaluate them and determine what
actions need to be taken to address the risks they may pose,
and initiate appropriate action. EPA will produce "chemical
action plans," which will target the agency's regulatory
efforts on chemicals of concern.
On December 30, 2009, EPA posted action plans on phthalates,
perfluorinated chemicals, polybrominated diphenyl ethers and
short-chain chlorinated paraffins. These action plans
summarize available hazard, exposure, and use information;
outline some of the risks that each chemical may present;
and identify specific steps that USEPA is taking to address
those concerns.
However, even with the enhanced efforts, in 2009 the
Government Accountability Office found USEPA's
implementation of TSCA to be "high-risk" because "EPA has
failed to develop sufficient chemical assessment information
on the toxicity of many chemicals that may be found in the
environment as well as tens of thousands of chemicals used
commercially in the United States" and concluded by stating
that Congress may wish to amend TSCA and extend the EPA more
explicit authority. At a recent Congressional hearing in
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February 2010, the GAO director again reiterated concerns,
brought up new insufficiencies in USEPA's use of the
authority and direction of TSCA, and called for legislative
reform of TSCA. USEPA's own Inspector General additionally
declared on February 17, 2010, a need to make internal
reforms to more strictly enforce TSCA and set timelines for
how long confidential business information can be kept
secret rather than allowing for indefinite disclosure
protections.
1) Extensive deficiencies in the federal regulation of
chemicals . Of all federal environmental statutes, the
Toxic Substances Control Act of 1976 (TSCA) is the only law
that is intended to enable regulation of chemicals both
before and after they enter commerce. Numerous academic,
legal, and scientific bodies have all concluded that TSCA
has not served as an effective vehicle for the public,
industry, or government to assess the hazards of chemicals
in commerce. After decades of implementation, TSCA has
largely failed to provide the necessary information to
assess the health and environmental effects for tens of
thousands of chemicals in commerce.
TSCA's weaknesses have far-reaching effects. Lacking
comprehensive and standardized information on toxicity and
eco-toxicity for most chemicals, it is very difficult for
businesses and industry to choose safer chemicals or to
identify and reduce the use of hazardous chemicals in their
supply chains. Government agencies do not have the
information they need to systematically identify and
prioritize chemical hazards, nor the legal tools to
efficiently mitigate known hazards.
2) Green Chemistry in California . For more than a decade,
California has struggled to fill in the gaps in TSCA
chemical policy. The Legislature has considered nearly a
hundred bills proposing chemical bans and broader chemical
policies for California, heard testimony from "battling
scientists" and was interested in developing a broader,
more comprehensive approach to chemicals policy.
In 2003, the Senate Environmental Quality Committee and the
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Assembly committee on Environmental Safety and Toxic
Materials commissioned a report from the University of
California to investigate the current legal and regulatory
structure for chemical substance and report on how a
California chemicals policy could address environmental and
health concerns about chemical toxicity, build a long-term
capacity to improve the design and use of chemicals, and
understand the implications of European policy on the
California chemical market.
In 2006, the U.C. Berkeley authors presented the
commissioned report, Green Chemistry in California: A
Framework for Leadership in Chemicals Policy and Innovation
and made a connection between weaknesses in federal policy,
namely TSCA, and the health and environmental damage
happening in California. The report broadly summarized
their findings into what they called the "three gaps".
1. Data Gap: There is a lack of information on which
chemicals are safe, which are toxic, and what chemicals
are in products. The lack of access to chemical data
creates an unequal marketplace. California businesses
cannot choose and make safer products and respond to
consumer demand without ingredient disclosure and
safety testing.
2. Safety Gap: Government agencies do not have the
legal tools or information to prioritize chemical
hazards. Under TSCA only 5 chemicals out of 83,000
have been banned since 1976. The California
legislature has frequently addressed this problem by
approving individual chemical bans. Chemical bans come
before the legislature because there are very few other
mechanisms in place at the federal or state level that
can remove harmful chemicals from the marketplace.
3. Technology Gap: There is an absence of regulatory
incentives, market motivation which stems from the data
gap, and educational emphasis on green chemistry
methodologies and technologies. In order to build a
substantial green chemistry infrastructure, a
coincident investment and commitment must be made to
strengthen industrial and academic research and
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development.
In 2007, the California Environmental Protection Agency
launched California's Green Chemistry Initiative within the
Department of Toxics and Substances Control (DTSC). The
California Green Chemistry Initiative Final Report released in
December 2008 included the following six policy
recommendations for implementing this comprehensive program in
order to foster a new era in the design of a new consumer
products economy - inventing, manufacturing and using
toxic-free, sustainable products.
1. Expand Pollution Prevention and product stewardship
programs to more business sectors to focus on prevention
rather than simple source reduction or waste controls.
2. Develop Green Chemistry Workforce Education and
Training, Research and Development and Technology
Transfer through new and existing educational program and
public/private partnerships.
3. Create an Online Product Ingredient Network to
disclose chemical ingredients for products sold in
California, while protecting trade secrets.
4. Create an Online Toxics Clearinghouse, an online
database providing data on chemical, toxicity and hazard
traits to the market place and public.
5. Accelerate the Quest for Safer Products, creating a
systematic, science-based process to evaluate chemicals
of concern and identify safer alternatives to ensure
product safety.
6. Move Toward a Cradle-to-Cradle Economy to leverage
market forces to produce products that are
"benign-by-design" in part by establishing a California
Green Products Registry to develop green metrics and
tools for a range of consumer products and encourage
their use by businesses.
In 2008, Assembly Bill 1879 (Feuer) and Senate Bill 509
(Simitian) were signed by the Governor to implement together
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two key pieces of a green chemistry initiative for California:
1) requiring DTSC to adopt regulations for the identification
and prioritization and evaluation of chemicals or chemical
ingredients in products that may be considered a "chemical of
concern" and their potential alternatives; and 2) requiring
DTSC and the Office of Environmental Health Hazard Assessment
to establish a Toxics Information Clearinghouse for the
collection, maintenance, and distribution of specific chemical
hazard traits and environmental and toxicological end-point
data and evaluate and specify the hazard traits and
environmental and toxicological end-points and any other
relevant data that are to be included in the clearinghouse.
DTSC recently released a framework to illustrate the concept
of the regulations that DTSC is currently working to develop.
According to DTSC, the projected release date of the proposed
regulations is late spring/early summer and the department
projects completing and adopting the final regulations by the
end of 2010.
1)Proponents' arguments . The supporters state that in the quest
for sparkling clean, germ-free homes, today's consumers have a
vast array of products at their disposal: detergents,
disinfectants, glass cleaners, carpet cleaners, stain
removers, air fresheners and all-purpose cleansers. Sales of
cleaning products to U.S. consumers reached $7.3 billion
dollars in 2007. But many consumers don't know - and the
labels won't tell them - that chemicals found in some ordinary
household products are known or suspected to cause cancer,
birth defects, asthma, skin sensitivities, allergic reactions
and other serious health effects.
Supporters argue that current law does not require
manufacturers to disclose the ingredients in cleaning products
to consumers. While some companies are beginning to disclose
cleaning product ingredients, many chemicals remain hidden,
particularly those found in fragrances. Consumers who want to
make educated purchases are often in the dark when it comes to
how to purchase safe cleaning products.
They add that similarly, institutions like hospitals and
schools who serve vulnerable populations are often denied
access to ingredient information from manufacturers. These
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institutions are then forced to buy products about which they
know little or nothing regarding possible health hazards.
Even physicians treating patients who have suffered adverse
reactions from exposure to cleaning products cannot get access
to ingredient lists.
The supporters believe that SB 928 will give consumers the
information they need to make educated decisions about their
purchases.
2)Opponents' Arguments . Opponents have provided the following
arguments:
The full ingredient disclosure in SB 928 is
unnecessary, not scientifically sound, likely to cause
consumer confusion and is potentially harmful to product
innovation.
SB 928 would require redundant layers of compliance by
requiring manufacturers, wholesalers and retailers to
disclose ingredients in products they sell on their
websites, which will add cost to products sold in
California.
California businesses cannot ultimately compel the
manufacturers that they do business with to disclose
ingredient information and as such would have to stop
selling products in California for which information
cannot be obtained.
Many small businesses do not currently maintain a
website because they lack the expertise to do so and the
cost of paying someone to build and maintain a website is
cost prohibitive. The opposition feels that requiring
website disclosure is an impediment to small business.
1)Issues for further consideration . There are ongoing
discussions with all stakeholders regarding provisions to
address the following concerns: 1) how best to address
confidential business information; 2) nomenclature:
(constructing a uniform protocol for reporting chemical names
and related information); 3) enforcement of violations, and 4)
how best to address incidental ingredients.
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SOURCE : Senator Simitian
SUPPORT : Breast Cancer Action
Breast Cancer Fund
Clean Water Action
Environment California
Environmental Working Group
Sierra Club
Women's Voices for the Earth
OPPOSITION : California Chamber of Commerce
California Manufacturers & Technology
Association